Administrative Law Prof Blog

Source for municipal law

From the monthly Library Update of the U.S. Court Library in Phoenix, Arizona, a recommended online source.

Website of the Month

http://www.municode.com/

This is the web address for a well-regarded publisher of city, county, tribal, and other smaller jurisdictions’ codes and ordinances. Municipal Code Corporation was founded in 1951 to codify municipal codes, as many cities and other small jurisdictions found that being a book publisher was an area of expertise they lacked.  The company’s website allows free online searching of the codes of such Arizona American Indian nations, cities, and towns as Avondale, Fort McDowell Yavapai Nation, Bullhead City, Scottsdale, Pima County, and Gila River Indian Community.

EMM

Tax procedure v. the APA

Kristin E. Hickman (Minnesota) has published IRB Guidance: The No Man’s Land of Tax Code Interpretation, 2009 MICH. ST. L. REV. 239. Introduction:

This Symposium Essay compares current patterns and practices surrounding IRS utilization of IRB guidance (revenue rulings, revenue procedures, and notices) with administrative law doctrine concerning informal agency guidance documents. In administrative law jurisprudence, the distinction between legislative and interpretative rules (and thus whether the Administrative Procedure Act requires public notice and comment procedures) and the determination of whether Chevron or Skidmore provides the appropriate evaluative standard on judicial review both ultimately turn on whether the agency legal interpretation at issue carries the force and effect of law. The precise contours of the force of law concept are unclear, as is whether the force of law means the same thing for APA procedural challenges as it does for judicial deference. Although there seems to be an emerging consensus in the tax community that IRB guidance documents contain interpretative rules eligible only for Skidmore deference, this consensus seems premised on longstanding assumptions about IRB guidance that are not entirely consistent with the contemporary reality of IRB guidance. Current IRS practices, government litigating positions in tax cases, Code provisions and regulations imposing penalties for noncompliance, and retroactive application of regulations based on IRS notice publication individually and collectively situate IRB guidance squarely in the gray area of the force of law concept, raising important issues of whether IRB guidance is entitled to Chevron deference but also subject to APA notice-and-comment rulemaking requirements.

Hat-tip to the TaxProf Blog. EMM

Admin procedure is not the same as civil procedure

Administrative procedures have their own rules. For example, most federal administrative matters are governed by the Administrative Procedure Act (APA) (5 U.S.C. Ch. 5). State and local proceedings have their own rules, which may have more or fewer rights and obligations for the parties than the rules of civil procedure for the jurisdiction. For example, Harvey Randall describes a case in his New York Public Personnel Law blog in "No right to discovery in a disciplinary procedure unless provided by law or specifically provided by the collective bargaining agreement". An employee served with disciplinary charges made prehearing disclosure demands. Her agency refused them, but an appeals board determined that this was an improper practice under the state civil service law. On further appeal, the trial court vacated the appeals board order and this was upheld by the appellate court.

The court explained:

1. In contrast to disciplinary actions, there is “firm footing” for recognizing the right of an employee organization to obtain information relevant to a potential contractual grievance concerning the interpretation, application or alleged violation of a provision of a collective bargaining agreement.

2. Disciplinary proceedings involve alleged misconduct by an employee and serve a significantly different function than a contract grievance. Although the specifications of alleged misconduct set out in the disciplinary charges must be sufficiently detailed to permit the charged employee to prepare and present a defense “there is no general right to disclosure in a disciplinary proceeding.” (However, an employee's right to disclosure ... may be provided by statute).

It appears that the appeals board applied the grievance rules under the union contract to this disciplinary proceeding, which was not covered by the contract. The lesson here is that administrative procedure rules are usually different from civil procedure rules, except when the administrative rules incorporate civil rules by reference or when the appellate process reaches the regular courts. Within the same jurisdiction the rules for different proceedings may differ. Many federal proceedings are explicitly excluded from the coverage of the APA. Don't assume. EMM

Sources: Regulatory data now available online

From RegBlog, "New U.S. Regulatory Information Released on Data.Gov":

Last week, the White House announced the online availability of extensive government datasets through Data.gov, an initiative that is part of the Obama Administration’s new Open Government Directive. 

Data.gov is a website run by the Federal Chief Information Officers Council and its stated purpose is “to increase public access to high value, machine readable datasets generated by the Executive Branch of the Federal Government.”

The datasets on Data.gov come from many departments and agencies, with information ranging from how the federal government spends its money to how NASA maps the globe.

And more. EMM

Is a final rule not submitted to Congress under P.L. 104-121 enforceable?

From Joe Hodnicki at our sibling Law Librarian Blog: "Are Agency Final Rules Not Submitted to Congress for Possible Disapproval Under the Congressional Review Act Enforceable?"

Signed into law in March of 1996, The Congressional Review Act, Title II of P.L. 104-121, was an attempt to reestablish a measure of congressional authority over rulemaking by establishing expedited procedures by which Congress may disapprove agencies’ final rules by enacting a joint resolution of disapproval. As a first step, the CRA generally requires federal agencies to submit final rules to Congress and GAO before they can take effect. In "Congressional Review Act: Rules Not Submitted to GAO and Congress", the Congressional Research Service reports:

Between 1999 and 2009, GAO sent the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget at least five letters listing more than 1,000 substantive final rules that GAO said it had not received. ... The most recent of these letters was sent to OIRA in May 2009, and listed 101 substantive rules that were published during FY2008 that GAO said had not been submitted. ... As of October 26, 2009, 99 of the 101 rules had still not been submitted to GAO and to both houses of Congress.

The CRS report discusses the CRA rule submission requirement, its legislative history and current legislation related to this issue ...

One question: has anyone made the argument that a final rule not submitted to Congress under CRA is not legally binding? [JH]

Interesting question. EMM

Judicial review of discretionary actions

From SCOTUSblog: "Scope of IIRIRA’s jurisdictional bar". This is a decision about judicial review in a very narrow context, but there are some interesting phrases.

A provision in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 8 U.S.C. § 1252(a)(2)(B), precludes judicial review of any action of the Attorney General “the authority for which is specified under this subchapter to be in the discretion of the Attorney General.”  In No. 08-911, Kucana v. Holder, the Court considered whether Section 1252(a)(2)(B) stripped the Seventh Circuit of jurisdiction to review a decision by the Board of Immigration Appeals (BIA) denying a motion by petitioner Agron Kucana to reopen his removal pleadings to present new evidence on his asylum claim.  The Seventh Circuit held that it lacked jurisdiction because Section 1252(a)(2)(B)(ii)’s bar extends not only to decisions made discretionary by statute, but also to cases in which – as here – the agency’s discretion is specified by its own regulation.  Today the Supreme Court reversed, in an opinion by Justice Ginsburg that was joined by all of the justices except Justice Alito, who concurred in the judgment. ...

[T]he Board’s discretionary authority is “specified” only by regulation.  And regulations, the Court ultimately concludes, are not enough to trigger Section 1252(a)(2)(B)(ii)’s jurisdictional bar.  The Court reaches that conclusion based on the text and context of the statute, which it reads as indicating that “Congress barred court review of discretionary decisions only when Congress itself set out the Attorney General’s discretionary authority in the statute.” ... And “any lingering doubt about the proper interpretation” of Section 1252(a)(2)(B)(ii)’s bar should be resolved by the presumption in favor of judicial review of administrative actions.

The Court finishes by “stress[ing] a paramount factor in [its] decision”:  “By defining the various jurisdictional bars by reference to other provisions in the [Immigration and Nationality Act] itself, Congress ensured that it, and only it, would limit the federal courts’ jurisdiction.”  By contrast, under the Seventh Circuit’s interpretation, “the Executive would have a free hand to shelter its own decisions from abuse-of-discretion appellate court review simply by issuing a regulation declaring those decisions ‘discretionary’” – a prospect that the Court seemed to find troubling indeed.

See also the LII analysis here. EMM

Policy: Regulation as a prior restraint

On his Within the Scope blog, Judge E.L. Lipman has an interesting comment on the recent Citizens United campaign finance decision from the U.S. Supreme Court: "Not Just Narrowly Tailored, But Gently Tailored As Well".

While one could no doubt run an entire constitutional law seminar on the features that are found in yesterday’s 183-page opinion, Citizens United v. Federal Elections Commission, I was drawn to one part in particular – the majority’s contention that bureaucratic red tape can stifle political speech just as much as the censor’s blue pencil.

So, while most commentators were expressing concern over the rivers of corporate money that may cascade around political campaigns in the years ahead, I was thinking about how the decision could impact the remainder of the regulatory landscape. It seemed to me that provisions of the Bi-Partisan Campaign Reform Act may not be the only regulations that fall under the standards announced yesterday.

He then quotes from Justice Kennedy's opinion, including

This regulatory scheme may not be a prior restraint on speech in the strict sense of that term, for prospective speakers are not compelled by law to seek an advisory opinion from the FEC before the speech takes place. As a practical matter, however, given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. These onerous restrictions thus function as the equivalent of prior restraint by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit.

Judge Lipman asks us to think about how this attitude may affect other regulatory schemes. EMM

Estoppel against government agencies

Usually if the government makes a mistake and later corrects it, there is little you can do to stop the correction. On his New York Public Personnel Law blog, Harvey Randall discusses an exception in "Doctrine of estoppel against governmental entities may be invoked where its 'misleading nonfeasance would otherwise result in a manifest injustice'".

In 2000 [the plaintiff] resigned from her position after allegedly being told by one of the [School] District's employees working in its benefits office that since she was a "vested" employee at the time of her resignation, she was entitled to a continuation of her health benefits as long as she paid the full premiums until she attained 55 years of age.” [The plaintiff] also alleged that this employee told her that once she attained age 55, the District would become responsible for payment of 50% of the health insurance premiums.

In June 2006, [the plaintiff] told the District that she would be turning 55 in July and that, as a result, it should start to pay 50% of her health insurance premiums. The District, however, told [the plaintiff] that “an error had occurred and that [she] had not been entitled to the continuation of her health benefits after she resigned.” The District then terminated [the plaintiff's] health insurance coverage with the District, compelling her to secure alternate coverage for herself and her family at a much higher cost. ...

Although as a general rule estoppel may not be invoked against a governmental body to prevent it from performing its statutory duty or from rectifying an administrative error there is an exception to this general rule "where a governmental subdivision acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice." ... [T]he Appellate Division noted that it had invoked the doctrine of estoppel against governmental entities where its "misleading nonfeasance would otherwise result in a manifest injustice" such as where the aggrieved party has been the victim of bureaucratic confusion and deficiencies.

In this instance, said the court, although the District’s employee did not induce [the plaintiff] to resign, once [she] did resign, she made certain employment and insurance decisions based upon the earlier representations that she was entitled to receive continuing health insurance coverage from the District.

And that created triable issues of fact. EMM

Learning moments from the Court of International Trade

I recommend the Customs Law blog post "Learning Moments" by Lawrence Friedman of Barnes/Richardson (Chicago). He reviews United States v. Tip Top Pant, Inc and Saad Nigri, "an interesting case from the Court of International Trade that provides all kinds of useful lessons."

The facts are that Tip Top imported shorts from Mexico and made a claim for duty-free treatment under NAFTA. Customs issued a CF28 Request for Information relating to the claim. In the request, Customs stated that “Due to the fact that this office is already reviewing your invalid claims, you are no longer eligible for the provisions set forth under 19 C.F.R. § 162.74.”

Mr. Friedman then explains why that is important and goes on:

But, an investigation is not “a review.” In theory, Customs reviews, to one degree or another, all kinds of entries: good, bad, and fraudulent. A simple entry review is not a formal investigation. Is this really enough to preclude a disclosure? I don’t know, but someone is going to have to ask the courts someday.

Another interesting point about the CF28 is that it declares the entries to contain “invalid claims” even before the importer has had an opportunity to respond. What kind of process is that?

The next thing I find fascinating is that the United States brought this case to Court before it completed the administrative penalty process. It is possible Customs was facing an impending statute of limitations problem and had to get into Court right away. The Court, however, took note of the incomplete process.

The United States made a motion for summary judgment arguing that all the facts necessary to establish liability for the company and its CEO Mr. Nigri had been established. The Court, however, found that Customs had not followed the proper penalty process by giving the defendants a full opportunity to rebut the claims against them. More over, Customs had never responded to the importer’s petition to mitigate the penalty. Without a complete penalty process, the Court refused to grant summary judgment for the government.

Last, and actually most interesting, is the case against Nigri personally. The facts do establish that Nigri was the person in charge of Tip Top Pants at the relevant times. ... The complaint the United States filed asserts that Tip Top was the importer of the merchandise. It further asserts that the merchandise did not qualify for duty-free treatment as claimed. Lastly, the complaint says that Nigri was CEO and Chairman of the company.

Based on this pleading, the Court independently raised the question of whether that is enough to make Nigri a party and finds it is not. According to the Court, the complaint did not allege any behavior on Nigri’s part that was evidence of his negligence. Without allegations of negligence or other behavior leading to personal liability, the Court held that the United States had failed to allege a cause of action against Nigri. Thus, the case was dismissed with respect to him. ...

He finishes up with some practice guidance that you should read. Looks like somebody at Customs was really sloppy. EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Daniel, Kathryn B. Comment. Winds of change: competitive renewable energy zones and the emerging regulatory structure of Texas wind energy. 42 Tex. Tech. L. Rev. 157-180 (2009). [H]|[L]|[W]
  
• Epstein, Richard A. Against permititis: why voluntary organizations should regulate the use of cancer drugs. 94 Minn. L. Rev. 1-41 (2009). [H]|[L]|[W]
  
• Murphy, Kevin Patrick. Note. Alive but not well: manifest disregard after ... (Hall Street Associates, L.L.C. v. Mattel, Inc., 128 S. Ct. 1396, 2008,) 44 Ga. L. Rev. 285-315 (2009). [H]|[L]|[W]

EMM

Make a record, darnit!

From the New Jersey Property Tax Law blog, "Tax Court Remands Revaluation Order":

... [T]he New Jersey Tax Court remanded an appeal from a revaluation order by the Burlington County Tax Board. Mount Laurel Township appealed the board’s order for a municipal-wide revaluation. Both the board and the township moved for summary judgment. The record consisted solely of the board’s order which contained limited information regarding the average ratio of assessed values, and did not indicate whether the board considered the ten criteria for revaluation required by N.J.A.C. 18:12A-1.14(b). Nor did the record indicate any other reason for the revaluation order. In denying both motions for summary judgment, the Tax Court found that the record was not sufficient to determine whether the board’s order was reasonable. The Tax Court held that it must know the facts upon which the board relied before rendering a decision as to whether the revaluation order was reasonable. ...

Two lessons here. First, if you are making an administrative decision, make a record. One of the most basic aspect of administrative due process is that the decision maker must create a record showing that the statutory and higher-level regulatory requirements have been met. This one is really simple.

The second lesson is more subtle. If you are appealing a decision like the one in this case, you can create the record. Include with your summary judgment motion affidavits and other evidence that the requirements have not been met, and you can perhaps shortcut the process. If the Township in the case above had supplemented its motion with surveys, records, even opinions showing that the ten criteria for revaluation had not in fact been met, the Tax Court might have simply found in favor of the Township rather than remanding and dragging things out further. Unless, of course, what the Township wanted was to drag things out. Thanks to Lexology for the pointer. EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Belcore, Jamie and Jerry Ellig. Homeland Security and regulatory analysis: are we safe yet? 40 Rutgers L.J. 1-96 (2008). [H]|[L]|[W]

• Cunningham, Lawrence A. and David Zaring. The three or four approaches to financial regulation: a cautionary analysis against exuberance in crisis response. 78 Geo. Wash. L. Rev. 39-113 (2009). [H]|[L]|[W]

• Moody, Melissa. When courts do not protect the public: how administrative agencies should suspend professionals' licenses on an emergency basis. 10 Fla. Coastal L. Rev. 551-566 (2009). [H]|[L]|[W]

• O'Connell, Anne Joseph. Vacant offices: delays in staffing top agency positions. 82 S. Cal. L. Rev. 913-999 (2009). [H]|[L]|[W]

• Rathod, Jason. Note. Not peace, but a sword: Navy v. Egan and the case against judicial abdication in foreign affairs. (Dep't of the Navy v. Eagan, 484 U.S. 518, 1988.) 59 Duke L.J. 595-635 (2009). [H]|[L]|[W]

• Scott, Kyle A. The link between judicial independence and administrative staffing: a reappraisal. 25 J.L. & Pol. 19-40 (2009). [H]|[L]|[W]

EMM

Thrower Symposium at Emory

The Emory Law Journal presents the 2010 Randolph W. Thrower Symposium: The New New Deal: From De-Regulation to Re-Regulation, Thursday, February 11, 2010, at the Emory University School Of Law in Atlanta. Speaker, schedule, registration, and parking information are under the "Thrower Symposium" tab above the main body of the linked page. Thanks to The Volokh Conspiracy for the tip. EMM

Ultra vires fun

On Law.com's Legal Blog Watch, Robert Ambrogi (Rockport, MA) reviews a recent Massachusetts ultra vires case in "Prisoners Cannot Be Charged Board, Court Says".

Five dollars a night would be a steal at any other place of lodging, but the patrons of the county jail in Dartmouth, Mass., had certainly not shopped around for their overnight accommodations. ...

But for the sheriff who runs the jail, it was all about teaching prisoners financial responsibility. In 2002, he launched his Inmate Financial Responsibility Program, charging prisoners $5 a day as a "cost of care" fee, along with other fees for additional services. ...  Over the years, the sheriff collected some $750,000 from prisoners.

Now, he will have to pay them back, after the Massachusetts Supreme Judicial Court [SJC] ruled yesterday that he had no authority to impose the fees. In Souza v. Sheriff of Bristol County [No. SJC-10508, Jan. 5, 2010] the SJC rejected the sheriff's argument that common law traditions dating back to the early days of English history gave him this power.

The SJC said that only the legislature could decide to impose such fees on prisoners. "Had the Legislature intended to authorize the sheriff to impose the challenged fees, it would have said so expressly as it had done with other fees," Justice Roderick L. Ireland wrote for a unanimous court. ...

The opinion cited is a great argument for teaching Legal History in law school. Unfortunately, it is not history but administrative law that controls here. The court cites treatises from 1904 and 1941, and in the absence of any authority to the contrary finds that the levying of fees by the sheriff must be authorized by the legislature. From the opinion:

While the sheriff provides support for the proposition that his authority to manage and control county jails derived from common law,(8) he does not cite to any authority providing that, under common law, sheriffs were permitted to charge fees, which we conclude is a distinct function not subsumed in his custodial duties. To the contrary, it has been recognized that, "[a]s a general rule the powers, duties, rights and responsibilities of a sheriff as jailer are prescribed by statute, and as his powers and duties, rights and liabilities, are thus circumscribed by the legislative enactments of the particular jurisdiction . . . ." 1 Anderson, supra at § 266. Indeed, in support of his position that, under the common law, he may impose the challenged fees, the sheriff cites only to statutes.(9) Thus, in the absence of any support that imposition of the challenged fees was part of a sheriff's common-law duty, the extensive collection of historical statutes submitted by the parties has no bearing on the issue before us. Rather, we must examine the current statutory scheme to determine whether the sheriff is authorized to impose the challenged fees.

And footnote 9:

(9) There is no dispute that, by statutory authorization, sheriffs, at various time, were authorized to charge certain fees. See, e.g., Province Laws 1692-1693, c. 37, § 1 (authorizing "gaoler" to charge fees "[f]or turning of the key" on commitment and discharge, and "[f]or diet") and § 2 (prohibiting charge of any fees additional to that prescribed). This statutory authorization, however, has not always been extended to sheriffs. For example, in 1663, the Colonial Legislature authorized the criminal court having jurisdiction over a prisoner, and not a sheriff, to decide whether and how much a prisoner might have to pay for the costs of his "maintenance." General Laws and Liberties of the Massachusetts Colony 128 (1672 ed.). Further, there is also no dispute that, by statute, measures were taken, at various times, to prohibit sheriffs from charging and collecting different fees. See, e.g., St. 1859, c. 249, § 2 (providing "county commissioners . . . establish fixed salaries for all officers, assistants and employees of jails and houses of correction, which shall be the full compensation of said officers, assistants and employees, in lieu of all sums now received by them in their office, for board, turnkey fees, perquisites or otherwise").

Fun. EMM

Congress ultra vires?

Judge E.L. Lipman (Twin Cities, Minnesota) on his Within the Scope blog has an excellent summary of the key argument in what is perhaps the most important administrative law case of the 21st Century thus far, in "Oral Argument in U.S. v. Comstock Has Echos of M'Culloch v. Maryland".

In Comstock, the court considers whether Congress has the authority to enact a statute providing for the indefinite civil commitment of "sexually dangerous persons” who are in the custody of the Bureau of Prisons, but whose federal prison sentence is at an end. Is civil commitment of dangerous persons an enumerated power of Congress – and if so, which power?

EMM

Form v. Substance

On her Law of the Land blog, Patty Salkin (Albany) describes a case turning on the challenge of form versus substance - text versus life - in "Failure of Realtor-Board Member to Provide Written Disclosure of Conflict Did Not Invalidate Board Decision". In an appeal from a Zoning Board of Appeals decision, the plaintiff

alleged that a potential conflict of interest existed because one board member, who was a real estate agent who represented the estate of the prior owner of the property sold.  She was contacted by the plaintiff when he first noticed activity on the adjoining property and her daughter was a witness on a deed to the sale of both properties.

Connecticut General Statutes § 8-11 states that “No member of any … zoning board of appeals shall participate in the hearing or decision of board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense.”  In the present case, the board member made every effort to avoid participation in proceedings.  She either was not present, or recused herself from every meeting.  She did not take part in the discussion or in any votes.  The plaintiff’s only claim is that she participated in a meeting when the Board voted to schedule the plaintiff’s third appeal for a public hearing.  Also, the plaintiff’s attorney was present at that meeting and did not raise any objections. ...

The Court also looked to section 1.903 of the Montville Charter which [says much the same thing] ...

The Court admits that the board member did not comply with the Charter since the disclosure was never made in writing.  However, since the conflict was known to all parties and the board member made an effort to not participate, it would be an “improper exaltation of form over substance to invalidate the actions of the Board on the basis of any violation of the Charter.”

One of the human aspects of administrative law is the frequent conflict between the text of rules that are written before they can be applied to facts - and that cannot anticipate every possible fact situation to which they will be applied - and substantial justice. This becomes a point of advocacy. EMM

Regulation and the First Amendment

On his Drug and Device Law blog, Jim Beck (Dechert LLP, Philadelphia) slices and dices the government's motion to dismiss in Allergan’s First Amendment challenge to the FDA’s regulations on off-label promotion, "Beware The FDA Bearing Regulations: An Allergan Update".

[I]n the grand tradition of the First Amendment, the war of words is escalating, mud is being slung, and court filings are name-dropping Trojan priests – but more on that later. ...

Anyway – the government’s motion. It is a 45-page whopper chock-full of pronouncements about the practical effect of numerous FDA regulations relating to promotion and labeling, so it is definitely worth a read for anyone interested in this area of the law. ...

I suggest that this post is definitely worth a read for anyone interested in First Amendment litigation and the regulation of commercial speech, whether or not you agree with Mr. Beck's position on the issues. EMM

Exhaustion of administrative remedies

The requirement that somebody objecting to the action of an administrative agency use the agencies own appeal procedures before resorting to the courts for relief is settled law. There are exceptions when administrative remedies are useless or worse than useless, but they are narrow and practical in nature. On his New York Public Personnel Law blog, Harvey Randall describes an appellate opinion explaining this in some detail to an impatient plaintiff in "The doctrine of the exhaustion of administrative remedy".

In this decision the Appellate Division set out a synopsis of the doctrine of the exhaustion of administrative remedy, noting that:

1. "One who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law."

2. "The exhaustion rule, however, is not an inflexible one. It is subject to important qualifications. It need not be followed, for example, when [a] an agency's action is challenged as either unconstitutional or wholly beyond its grant of power, or [b] when resort to an administrative remedy would be futile or [c] when its pursuit would cause irreparable injury."

3. "A constitutional claim that hinges upon factual issues reviewable at the administrative level must first be addressed to the agency so that a necessary factual record can be established."

4. "The mere assertion that a constitutional right is involved will not excuse the failure to pursue established administrative remedies that can provide the required relief." ...

Although Mirenberg had filed an appeal with the Commissioner of Education challenging the Superintendent's action, he subsequently filed an Article 78 petition with [the trial] Court seeking to overturn the Superintendent's determination. Lynbrook asked [the trial] Court to dismiss Mirenberg's petition on the grounds that his appeal to the Commissioner was then still pending. ...

The court said that Mirenberg had not only failed to exhaust an available administrative remedy, he did not establish that an exception to the exhaustion of administrative remedies doctrine was applicable in his case. Thus ... [the trial] Court's dismissal of the proceeding without prejudice on the ground that Mirenberg had failed to exhaust his administrative remedies was appropriate under the circumstances.

EMM

An example of an admin law matter (continued)

Bricker & Eckler LLP (Columbus, Ohio) has published a followup article about the Ohio community schools situation described here on January 5, 2010. EMM

PVA Professional Division Writing Competition

Dear colleagues,

 

I thought you might be interested to know about Paralyzed Veterans of America's Sixth Annual Writing Competition for law professors and law students.  Veterans law is a branch of administrative law that does not get much attention, but this year's topic offers a good opportunity to discuss general theories of what role an appellate administrative adjudicator should play in system where claims are also subject to independent review.  The competition offers $3,000 prizes in both the professional and student divisions and PVA usually succeeds in having the winning articles published.  More information about the competition is available here:

 

http://www.pva.org/site/News2?page=NewsArticle&id=14171&security=1&news_iv_ctrl=0

 

The .pdf download of full submission information includes a lot more detail on the topic that should be addressed and poses the question of what is the proper balance between independence and administrative control for agency adjudicators.  Papers are due on June 1, 2010.

 

For those not familiar with particulars of veterans law, a lot of useful research material (including indexes of relevant law review articles, legislative materials, oversight reports, etc.) is collected at:

 

www.veteranslawlibrary.com

 

Although veterans law does not get much attention, it has a lot of interesting legal issues and this competition could be a great starting point for anyone interested in learning more and trying to help improve the process for our nation's veterans.

 

KP on behalf of

 

Victoria Hadfield Moshiashwili (Former Visiting Assistant Professor, College of Law, University of Illinois)

Law Clerk to the Honorable Alan G. Lance, Sr.

U.S. Court of Appeals for Veterans Claims

625 Indiana Avenue NW, Suite 900

Washington, DC  20002

 

vmoshiashwili@uscourts.cavc.gov